SHAKEEL ALAM QURESHI Vs. AZAZ ANSARI & OTHERS

JUDGEMENT

(1.) Having heard the rival contentions put forth by learned counsel of either party, it transpires that the controversial point is the projection which the defendant has erected in the street falling in Plot No.824. This projection is in front of the house of the defendant which is in Plot No.822; it is 7 feet in height and 55 cms. in breadth from the floor of the street and thus, to this extent, it is obliterating the street having the size of 1.10 meters. Therefore, the plaintiffs always feel impediment if anything is brought to their house. Previously, the Municipality concerned also objected to such erection but the defendant did not pay any heed, so the plaintiffs filed the O.S. No.3 of 2014 seeking mandatory injunction for the removal of such encroachment. This suit was dismissed on 28.9.2015 while the Civil Appeal No.44 of 2015, filed there-against, has been allowed on 30.4.2016 granting such injunction in favour of the plaintiffs, where-against the defendant Shakeel Alam Qureshi has come in second appeal before this Court.

(2.) It has been argued by learned Senior Counsel on behalf of the appellant that as per Section 91 of the Code of Civil Procedure, a suit for a declaration and injunction, in order to remove the public nuisance or other wrongful act, may be instituted either by the Advocate-General or by two or more persons with the leave of the Court, but such a condition has not been followed in the present suit. Thereafter, Order 1 Rule 8 of the Code also envisages that one person may sue or defend on behalf of all in same interest with the permission of the Court; and the argument was raised that no such permission was ever taken from the court, therefore, the suit was rightly dismissed by the Trial Judge.

(3.) On the other hand, learned Counsel on behalf of the caveator/plaintiffs has urged that the Trial Court has given the finding on the entire factual controversy in favour of the plaintiffs, nonetheless, it has dismissed suit only on such legal grounds and suit infirmity has correctly been rectified by the First Appellate Court.